Joseph Michael Gomez v. The State of Texas--Appeal from 29th District Court of Palo Pinto County

11th Court of Appeals

Eastland, Texas

Opinion

Joseph Michael Gomez

Appellant

Vs. No. 11-03-00349-CR Appeal from Palo Pinto County

State of Texas

Appellee

The jury convicted Joseph Michael Gomez of aggravated sexual assault of a child, found the allegation in the enhancement paragraph to be true, and assessed his punishment at confinement for 50 years. We dismiss the appeal.

The trial court imposed the sentence in open court on July 11, 2003. Appellant filed a motion for new trial on August 12, 2003, 32 days after the date sentence was imposed. The notice of appeal was filed on October 16, 2003, 97 days after the date the sentence was imposed.

It is unclear from the clerk s record whether the motion for new trial was timely mailed. Both the motion for new trial and the notice of appeal are untimely. TEX.R.APP.P. 21.4 & 26.2.

On October 24, 2003, the clerk of this court wrote the parties advising appellant that his appeal appeared to be untimely and requesting that he respond within 15 days showing grounds for continuing the appeal. Appellant has responded to our October 24 letter.

In his response, appellant s counsel states that the motion for new trial was timely mailed on August 11, 2003. Attached to the response is a copy of counsel s cover letter dated August 11 asking the district clerk to file the motion for new trial. Appellant also argues that the trial court informed him at the sentencing hearing that the deadlines for filing appeals would run from the time the judgment was reduced to writing.

Rule 26.2(a) provides that the day sentence is imposed or suspended in open court, or...the trial court enters an appealable order is the beginning point for the appellate timetable in criminal cases. Rule 26.2(a) tracks the language of former TEX.R.APP.P. 41(b) and former TEX. CODE CRIM. PRO. art. 44.08 by providing that the starting date be the date sentence was entered in open court. The Court of Criminal Appeals has held that, in the appeal from a conviction, it is the date the sentence was imposed in open court and not the date the judgment was signed that begins the appellate timetable. Rodarte v. State, 860 S.W.2d 108 (Tex.Cr.App.1993).

Assuming that the motion for new trial was timely mailed and, therefore, timely filed, appellant s notice of appeal was filed seven days late. An extension of time has not been filed as required by TEX.R.APP.P. 26.3. Absent a timely notice of appeal or the granting of a timely motion for extension of time, this court does not have jurisdiction to entertain an appeal. Slaton v. State, 981 S.W.2d 208 (Tex.Cr.App.1998); Olivo v. State, 918 S.W.2d 519 (Tex.Cr.App.1996); Rodarte v. State, supra; Shute v. State, 744 S.W.2d 96 (Tex.Cr.App.1988).

Therefore, the appeal is dismissed for want of jurisdiction.

PER CURIAM

November 20, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.